Category Archives: Social Tracking

It is time for Facebook to look itself in the mirror and decide who it wants to be when it grows up.

In the wake of the 2016 US elections there are volumes of conversations taking place over our possible future, the ongoing tension and conflicts, and the root causes of the election. The causes are numerous and not simple to categorize–your perception of the election’s results may make you view one cause as a positive or a negative, for example. But the causes are out there and, if they did not have the impact they desired, then the results of the election compel those causes to re-examine their purpose and impact. Facebook is one of them.

Mr Zuckerberg’s post talks about the potential impact of fake stories that circulated on Facebook. He believes those stories had no impact, but that also once you go down the road of trying to mark stories as true or fake you get into dangerous territory. Even mainstream reports may omit details or sometimes get stories wrong. That is entirely valid criticism and it is entirely hogwash.

Certainly you can draw the line at marking what is a real or fake story and you can argue about moving that line. Right now, no such line exists. That allows completely fabricated stories to gain widespread circulation perpetuating their untruths. Once that bad information has taken hold it is almost impossible to eliminate their impact, as Facebook well knows with the constant resurgence of Facebook untruths (Facebook is going to start charging you, if you post something then you keep control of your content, they now own all of your photos, etc.). Even if another true story circulates right after the original fake story you will still have a large number of people who think the fake story may have had a detail wrong but the overall theme is true. And of course that has an impact.

Facebook and other social media sites have become widely popular for lowering the barriers of distributing content. We can now connect with people and share information with simplicity and ease. That has powerful positive effects but it also has some drawbacks. The widespread dissemination of fake news is one drawback and that can be addressed by Facebook if it wanted to do so.

But there’s a bigger picture here, one that I fear Facebook is missing by only talking about fake news. Because the true impact of Facebook and all of social media isn’t just about fake news but rather that these platforms designed to increase communications between people may be doing the opposite. There is a wealth of articles and research about how the same technology that gives us access to so much content may also force us into a bubble of only content that we agree with. The most recent iteration is how this may have impacted the election, such as this New York magazine article points out, but this is an older concept as this fantastic 2011 TED talk points out (carve out 9 minutes to watch it if you can).

This is where Facebook can best start looking in the mirror. Because Facebook doesn’t just set up bubbles for its users, it is a bubble generating machine.

Facebook stays successful by making sure you keep coming back. It wants to give you content you find compelling and enough new material so you visit the site many times a day. It also can’t give you too much content or you’ll get frustrated and leave. And it also can’t give you content that will make you never come back–whether because you found it offensive or distasteful or any number of reasons.

This is the entire reason for Facebook’s Edgerank algorithm and why you sometimes see articles complaining how Facebook users don’t see all their friends’ posts. Facebook constantly tweaks and plays with this program to maximize your time on Facebook. More time on Facebook means you keep coming back and you’ll see more ads that they can sell to fund the platform. That makes sense from a platform and business perspective.

But as a content and media company, Facebook also needs to ask if maximizing user bubbles is truly in the best interests. Compare this to a snack food company that discovers if they add more sugar then people like the snacks more, they consume it more, they buy more of it. That makes sense from a business perspective and yet it may not be the best possible outcome.

Facebook and others need to look themselves in the mirror and decide who they want to be. They can take the all business approach of doing what is the best for profits or they can decide there is a greater responsibility at play. I don’t know how to burst those bubbles if Facebook chooses to do so. I do know that Facebook has some of the most brilliant content engineers, data scientists, and platform designers on the planet. If they want to address this problem, they can start coming up with solutions. Because bursting those bubbles may be vital in helping to bring people together, to help us increase understanding of problems and come up with solutions. Popping those bubbles may help heal the polarizing partisanship that has only grown over the past years.

Those bubbles may be nice to live in, but they may choke us in isolation. It’s time to figure out whether they’re worth keeping.

Either way, Facebook needs to look at their role in defining public conversations and make a decision. Sticking their head in the sand and pointing at the other causes is irresponsible. No, Facebook isn’t entirely to blame. It also is not blameless. Where it goes from there is entirely within their control.

Not only have you likely heard of Pokemon Go, you’re also statistically likely to have played it if you have a mobile phone. If you haven’t played there are plenty of guides out there (here’s a video I thought was a good intro) or you can just go to any public place where you see people looking at their phones and ask them.

Given the meteoric rise of Pokemon Go, it is only a matter of time before the game crosses over into doing promotions and marketing activity. There are already reports that the game includes code to run a test promotion with McDonald’s in at least one Asian country. With this many people and brands interested in the hot new game (and eventual platform), my friend and fellow social media lawyer Jim Dudukovich and I wanted to present the seven legal issues you should know around the game for now. This isn’t specific legal advice, just us thinking about the intersection of new technology and the law. And an excuse to play.

1. Pokemon Go isn’t a platform…yet

While Pokemon Go provides an intriguing mix of real world and virtual world entertainment, the interaction between players is currently very limited. Players do not see other players while wandering their virtual map overlays on real world maps. The only interaction with other players is in lures dropped by players and battling/training at Pokemon Gyms.

The swirling purple flowers are caused by lures dropped by players–you can see the lures dropped by other players but cannot see the players themselves.

This is all certain to change in the future. The Pokemon Go terms discuss the ability to trade items with other players even though that functionality does not yet exist. Trading items with other players will possibly come with the ability to communicate with them as well, or perhaps there will be the ability to chat with other members of your team (one of three alliances you join upon reaching level 5 in the game).

While Pokemon Go has currently inspired people to get together and communicate, it is neither required for the game nor supported by it yet. So the game is not a social media platform…yet. But given the rise of players and pop culture awareness, it is almost a certainty that the game will either evolve to become a platform or players will start to congregate around another platform in order to communicate. This places the app more in the realm of just a game for now, but as it expands functionality and brands start to get involved there will be a number of common social media platform legal issues that emerge. So stay tuned. And level up in the meantime.

2. Sponsored content is coming

Where there’s a game, there’s an opportunity for brands to get involved (with varying levels of legality). The model for Pokemon Go has yet to mature (or at least to be announced publicly), but the ways brands can get involved will likely include not only some “conventional” methods, but also some integrations that are possible only with augmented reality.

Going forward, we are likely to see “official” partnerships whereby businesses can become sponsored locations or some other formally identified type of destination with yet-to-be-determined perks (and costs). In order to distinguish the haves from the have-nots, the benefits of paying for participation will need to really break through the clutter of the free-riders in order for businesses to invest (see #3 below). One would assume that part of that bundle of rights would be co-promotional rights, whereby those partners can produce advertising materials featuring elements that only official partners can use.

And with augmented reality comes the ability for brands to buy virtual advertising space; clearly Niantic – should it opt to pursue this revenue stream – will need to be thoughtful so as not to chase away users by overly commercializing the user experience. When users start having to walk around a virtual billboard in order to capture a Jigglypuff, they might begin to revolt.

3. But businesses are already cashing in

As things currently stand, some businesses are near Pokestops, which attract players to their locations to load up on Pokeballs and other virtual supplies and (hopefully) lead those players to buy something from the brick-and-mortar business; at the very least it breeds familiarity and exposure. We’ve also seen businesses buying and dropping lures to attract players, as well as putting up social posts that play off of the game’s name, notoriety, characters, and imagery, including using #PokemonGo. There are even online articles telling business how to take advantage of this claim, like this rather creative one from Shift Communications.

Some examples:

An electronics store in Austin, Texas advertising that it is also a Pokemon Go Gym.

This Brookstone in the Houston Galleria invites players in with a discount.

A post on social media shows an alleged poster by a Navy recruiter utilizing Pokemon Go, although this has not been verified.

Even Yelp has gotten in on the crazy by offering a filter to find businesses near PokeStops.

From a legal standpoint this raises some interesting questions. For instance, if businesses are leveraging the game to attract consumers, would Niantic not have a potential claim for false association/false endorsement? One would think so, but since it’s already been over a week and we haven’t seen any claims, uhm, wait – how long until some form of laches or abandonment defense would attach? But seriously – we don’t know if Niantic has any inclination to attempt to aggressively enforce its trademark rights – it’s making plenty of money from in-app purchases that are attributable to these uses and will likely make plenty more once it launches official branding opportunities. In light of that, so long as the participation by unaffiliated businesses doesn’t interfere with Niantic’s business opportunities to sell official partnerships, and so long as those unofficial users don’t hold themselves out as official sponsors or otherwise engage in behavior that could dilute or undermine Niantic’s trademark rights, we probably won’t see widespread aggressive policing.

4. Does Pokemon Go create attractive nuisances or encourage trespass?

Pokemon Go is not the first geolocation game to exist, but it’s the first to breakout in such a significant way. Having millions of people, many of them under the age of 18, wander around trying to collect virtual property brings some real property issues up in unique ways. These next three topics are just a few of those interesting overlaps between the real and virtual world.

Adults know not to trespass on private property (or the law infers they do) but children are typically given a free pass when it comes to attractive nuisance law. This is the body of law that covers situations when a child illegally enters private property and is injured while on that property. While originally laws in this space required the nuisance itself (piles of lumber, swimming pools, trampolines) to cause the injury, the law has also broadened the landowner’s culpability to include conditions that the owner could foresee would cause injury. Imagine a very visible giant pile of lumber that a child would want to climb and a ravine covered by grass on the way there–that’s covered.

The Pokemon Go terms do imagine this potential risk area. There’s an entire Safe Play section which discusses avoiding physical harm while playing and obeying all laws including trespassing. That doesn’t mean much to the 13 year old who won’t read these terms (and 99% of all other players), but it provides the developer with some protection around players being injured. The terms do not shield property owners, who now may face a slightly greater risk of some injury on their property by players looking for Pokemon. The game is designed to be played by walking around and the game informs players when Pokemon are nearby but not where they are–the only way to track them down is to try walking in different directions and seeing if they are closer to the Pokemon as indicated by the number of footprints near the Pokemon’s picture or outline.

Since Pokemon are placed randomly, it is possible the game could inadvertently provide clues that lead children onto dangerous property or near a dangerous condition. These clues are left vague on purpose, to make it more of an exploration game, but that also can lead children onto private or dangerous property. When the Pokemon finally appears you can click on its location in the map, but getting it to appear can be random. The game also gives you visual clues of where Pokemon might be with rustling leaves–players chasing those leaves may not realize where they are going.

The game itself doesn’t intend this risky behavior, nor can it be prevented currently. It’s also debatable if a landowner would be liable for a harmful condition when they did not create the attraction that drew a child onto the property in the first place. If a landowner is already in a densely populated area and is concerned about children being injured, they probably have already taken action (on the condition itself, preventing access, posting signs). If they are in a remote area it’s hard to imagine local Pokemon Go players entering their property as opposed to visiting areas of attraction (PokeStops which provide virtual items to players). But landowners in the space between may want to be aware of this risk and if they were debating taking action in the past, perhaps now is a time to do so.

While it may be difficult to pin responsibility on Pokemon Go for an attractive nuisance or trespass, it certainly creates an environment where those actions may be more likely to take place. So both players and landowners may want to consider the risks when playing.

The idea of whether a location is appropriate or not is not limited to large national sites, though. Because Pokemon Go is based on work done for a previous geolocation game, Ingress, much of the previous game’s data are used for this new iteration. And because Ingress was based on a storyline involving spiritual energy, many of the featured locations in the game can have a spiritual element such as churches or monuments. Or take, for example, this PokeStop in Austin, Texas:

This happens to be the headstone for my wife’s great-grandmother Fania Kruger–a woman who immigrated to Texas when she was 15 and later became a well-known poet. Is her headstone being a PokeStop a good or bad thing? Is it a celebration of her life to have players intentionally seek out her final resting place and perhaps learn a bit of who she was or learn her name? Or is it a desecration of a place of remembrance for her and the other families whose relatives are nearby? While this may not present a direct legal issue, the reaction to a real world location with emotional interest becoming a game location can cause strong reactions. And those reactions may turn into legal issues as cemeteries, museums, or other public spaces must now develop a position on Pokemon.

6. Are Pokemon Go players loitering?

Laws vary on the subject, but generally speaking most jurisdictions have laws that allow authorities to prevent people from hanging around with no apparent purpose. Typically these laws were used to prevent gang activity or break up groups that might lead to trouble. With small or large groups suddenly appearing in public places, wandering around while staring at their phones, authorities might be curious or concerned. Within the first few days of the game being launched, a story appeared on Imgur of a white man searching for Pokemon in a park late at night only to encounter two fellow players, black men, and while the three of them talked the police were called about a suspected drug deal. The story ended happily enough, with the policeman downloading the game and playing, but under scrutiny the original poster deleted the story.

It is true that Pokemon Go is drawing out populations that were previously playing games indoors. While many people have long bemoaned the lack of America’s youth playing outdoors, society is also shocked and confused when exactly that happens. While businesses seem to be getting in on the action, some even advertising if their stores are PokeStops or Pokemon Gyms (areas where Pokemon are trained and players battle for control of the location), some other locations may be less open to random strangers driving up or wandering around. And authorities may be suspicious of large groups gathering at night. Is it a gang fight or a Pokemon Go meet-up?

The actual definition of loitering may differ by jurisdiction, but it is generally defined as remaining in one place without apparent purpose. Whether playing Pokemon Go provides that apparent purpose or not is debatable and may be up to the discretion of police officers depending on time and location. Shopping malls or other private property that have posted No Loitering signs are possible more sensitive to this kind of activity, so players may want to consider the area before conducting extensive searches or meeting up with other players.

7. Are Pokemon Go players targets for criminals?

In the wake of the game’s popularity came another rash of articles suggesting that players were at risk of being targeted by criminals. There was a report in St Louis of some teens who robbed players, possibly drawing them to their location by dropping a lure (virtual items which other players can see and increase your chances of finding Pokemon). It’s hard to imagine this is an actual spike in crime though–or if so it is by some of the worst criminals imaginable. Targeting Pokemon Go players seems far less lucrative than, say, staking out an ATM where people withdraw money. On the flip side, using a remote PokeStop may yield less rewards but have less chance of getting caught. Unless you’re in St Louis.

There’s also one story that made the rounds of a player who was stabbed while collecting Pokemon but elected not to go to the hospital so he could keep playing. You can read the full account here but I thought the more interesting (and usually ignored) part of the story was how he was out at 1 am, saw another man wandering around, and immediately asked him if he was playing Pokemon. This apparently triggered the man to attack the player with a knife. So maybe the lesson here is to not wander around after midnight playing Pokemon, or not to assume some other person stumbling around in the dark is doing the same. It may also be a lesson to the developers that hopefully they won’t create specific Pokemon that can only be found in urban centers, particularly near bars, in early morning hours.

More to come

Pokemon Go has certainly taken the country and world by storm but these are the very early days of the game. Will it fizzle in the upcoming months, or will it continue to draw a healthy crowd and new functionality as time goes on? We’ll keep our eyes peeled for any nearby rare Pokemon new legal issues around this game and let you know.

Another year in my Law & Social Media class is in the books at the University of Texas School of Law. Having just submitted my grades today, I’m now pleased to share with you this year’s final exam. I had to look around for the right inspiration for this year’s final, only to realize it’s been staring at me for over 15 months. Let me know in the comments what you think, or what issues you spotted in the final exam.

And now, the final exam:

QUESTION ONE

Your dream has come true. Not only have you passed the Bar but you have landed a job with famed Broadway production company Eat The Cheesecake! (ETC). ETC is getting ready to launch a new hip-hop musical about a little known figure from American history: President James A. Garfield. Garfield: An American Musical has been anticipated by theater goers and critics alike for months. The cast has been intensely rehearsing and they are quickly approaching the first few performances.

Although the musical theater crowd all knows about Garfield, ETC management is concerned that few people generally know about President Garfield. The original poster for the production, a picture of the actual President Garfield, tested poorly with focus groups because nobody recognized the photo. To develop a poster that would appeal to more people, ETC launched a pair of contests to come up with a new, consumer friendly mascot that could be the marketing face of the musical. They launched these contests one month before they hired you and they are now about to close.

The first contest allowed individuals to upload an image of the proposed new mascot. The second contest allowed individuals to submit names for the mascot. The online crowd quickly responded with thousands of entries. Unfortunately, despite the high volume, more than 99% of entries in the first contest consisted of a well-known cartoon cat by the name of Garfield. While over 99% of the entries for the second contest all named the new mascot “Garfield McGarfieldface.”

ETC doesn’t want to use these images or name and want to know their options. They eagerly point out to you that, really, they can do whatever they want because it won’t break the rules–they didn’t post any rules for the contests. They just said the winning entries would get a pair of tickets to the show every week for a year (a prize with an approximate retail value of $15,000). ETC would like you to brief them on what their options are for moving forward with the contests and, if they want to run any more contests in the future, what they should keep in mind when creating new promotions.

QUESTION TWO

ETC firmly believes that if they can just get people to hear about some of the exciting aspects of President Garfield’s life then everyone will want to buy tickets to their new musical. To get that message to the masses, their head of Marketing has decided to create a program called Garfield Lovers And Supporters And Generally Nice Announcers (LASAGNA).

Participants in this program would be selected based on their sizable social media following. They would then be invited to a special performance of the musical and they would all leave the show with a collection of pictures and interesting facts about the cast and crew. Program participants would then be instructed to post about the show on social media. For every post LASAGNA members make on social media platforms, ETC will pay the author $10. If the post receives over a thousand interactions (comments, shares, or simple interactions such as Likes) then the author will receive a bonus $20 in celebration of President Garfield being the 20th President of the United States.

ETC has already identified 200 potential influencers for this program–one for every day President Garfield was in office. The only requirement they want to impose upon the participants is that every post needs to have a link to a website where people can buy tickets to the musical.

The head of Marketing would like to know if there are any potential legal concerns over the Garfield LASAGNA program and, if so, how they could be corrected.

QUESTION THREE

Based on your advice with both the contests and the LASAGNA program, Garfield has now been open for a month and the crowds love it. Ticket prices have soared, the cast are swarmed every time they visit a convenience store, and you are officially sold out for the next six months.

One downside to the sudden popularity of the show is the amount of pirated material that is showing up online (YouTube, Facebook, and Instagram mostly). Audience members have been recording some of the songs from Garfield such as “Rosencrans’ Right-Hand Man,” “The Election of 1880,” and “I’ve Been Shot!” While ETC loves their fans’ enthusiasm, the online videos are grainy, shaky, and with horrible audio quality typical of a pirated video from a smartphone. ETC is afraid people might see these videos and think badly of the show.

The cast is also unhappy at seeing so many phones being used during the show and would like for something to be done about it. But the cast is also loving the attention from their fans. One of the stars of the show, Keslie Otum Sr., has said that he would like to schedule some live streams from behind the scenes using Periscope. The live streams would mostly be about hidden details from the show that audience members can’t see, but he’d also like to stream what the cast does backstage when the show is being performed—especially their now nightly ritual of everyone getting together right before the show and singing an inspired cover of “Baby Got Back.”

ETC would like you to let them know what their options are concerning the videos being posted online by audience members and what they should tell Keslie about his live streaming idea.

This is the fourth year I’ve taught my Social Media Law class at the University of Texas School of Law and each year I’ve posted the final exam here on the blog. I’ll be doing the same for this year’s exam later in the week, but I wanted to do something I hadn’t done before: post a model answer. I presented this answer to the class this year after getting permission from the writer, the top score in the final and class last year. Worth Carroll wrote the answer so all credit to him. If you want to re-read the questions he’s answering, here is the final exam from that year.

Would you have answered differently? When I went over the answer in class there were certainly points that came up that weren’t in this answer, and this answer also had points that the class hadn’t considered as well. Taking a law school exam is always a difficult task so it’s hard to say what you could do in the three hour situation, but this was a fantastic set of answers to the questions. Take a read after the break and see if you agree.

Readers who were smart enough not to attend law school (congrats on that!) may not realize that a law school final is serious business. The vast majority of your classes during those three years will have you reading and discussing cases and listening to a professor for an entire semester; then you get one test and that’s your grade. No repeats. No making it up down the road. One and done. Scary stuff.

Readers of this (increasingly infrequent, sorry) blog also know that I teach a class on Social Media Law at the University of Texas School of Law. This past year was the third time I offered the class and it’s always interesting to see the issues that have emerged from year to year or even during the year I’m teaching. I also spend a lot of time thinking about the final, both because I want it to be interested and because I want the students to have ample opportunity to show what they’ve learned over the entire semester.

Below is the final from my 2015 class. (Here’s the final from last year and here’s the final from 2013 if you’re curious.) I wanted to post it now to give you some time to think about it (or discuss in the comments). Later I’ll post what ended up being the top grade in the class’ answer (yes, I asked for and received permission to post it).

Before I get into the text of the final, let me thank the inspiration for elements of these questions: my work SMaC team for pulling social media lessons from the movie Chef, the movie Real Genius, my youngest son Isaac who thinks “Poo-poo” is the funniest word ever (he’s not wrong), and many real world examples that I tweaked for this exam.

And now, the final exam:

QUESTION ONE

Fresh out of law school and after passing your Bar exam, you are quickly snapped up by a hot new company called Pop-Up Pop-Ups (PU2). PU2 has a unique business model where they partner with other companies to create mobile marketing experiences. In the past, PU2 has worked with a volleyball company to hold an impromptu volleyball tournament in the middle of a city block. PU2 has also worked with fashion companies to hold flash mob style runway shows in unexpected locations such as rooftops and swimming pools. PU2 prides itself in organizing events that shock its audience and get people talking.

PU2 picks the locations for its events by identifying certain key social media users and targeting an experience around this individual, hoping that the individual will then be the origin for a cascade of social media posts that gets the word out about the event.

The CEO of PU2, Mr. Knowslittle, lets his staff handle the social media elements of the business. This past year he saw the movies Chef and Catfish and now thinks social media might be a risky area for him but he knows his team relies on social media to conduct their business. He has asked you to advise him on any practical or legal risks his business might face due to social media and to put them in perspective with the potential benefits his company could receive. Since he has never used any social media platforms but really enjoyed the movies Chef and Catfish, he would like you to use examples from these movies to help illustrate your points.

Compose an email to your CEO advising him about his company’s social media risks and potential rewards.

QUESTION TWO

PU2’s latest marketing stunt involved building a giant pyramid in Times Square. An actor wearing sun-god robes stood on the top of the pyramid while a hundred other actors stood at the base of the pyramid and threw little pickles at the sun-god. Your CEO is unclear what this event was supposed to promote but it did receive a lot of attention on social media.

During the event, the well-known action movie star Arnold Schwarzeblecher (“Arnie” for short), was filming Total Recall 2: Totaller Recall nearby. Seeing all the commotion, he came to Times Square and proceeded to take part in the event. He laughed, he cried, he said it was better than Cats as he stood and threw little pickles. Several bystanders saw Arnie participating in the event and they all took pictures and videos and posted their content to social media.

When Arnie returned to his trailer he had several urgent messages from his public relations team. They saw all the posted content and, even worse, so did a number of entertainment websites who are now running articles that Arnie is working with PU2 to promote…whatever the pickle throwing event was supposed to promote.

Arnie’s team is demanding you pull down all content using Arnie’s image. Your CEO, Mr. Knowslittle, has received some of these demands as well. Not only does he want to keep the content up but he’d also like to start posting some of these pictures and videos directly from all PU2 social media accounts (“Whatever those are,” he says, because he still doesn’t really get it).

Compose an email to your CEO addressing the demands from Arnie’s public relations team as well as Mr. Knowslittle’s desire to post this content from PU2 accounts.

QUESTION THREE

Your CEO, Mr. Knowslittle, has sent the head of Human Resources to speak to you about an employee matter. The Marketing Department had extended an offer to a new Event Manager, Helen Clueless, a week ago. Helen accepted the offer almost immediately and the team had been thrilled to bring in their newest team mate.

Some of Helen’s strengths which carried her through the interview process were her extensive social media skills and ability to build online communities. She had built her personal brand on Twitter and had an account with over 20,000 followers at the time of her interviews. The hiring manager, unsure of how to handle Helen’s Twitter account during the interview, was especially careful not to read the content of Helen’s tweets and ensured that everyone involved in the hiring process did the same.

After the Times Square pickle throwing, Helen tweeted out several messages that are highly critical of PU2. Some examples include:

I cannot believe I’m starting a job next week with this company. #picklethrowing

Sure, the job pays well, but am I going to work on stupid events like this for the rest of my life? #picklethrowing #worstjobever

Please, Twitterverse, find me a job before I start working for these morons. #picklethrowing #willworkfortweets

The last tweet caught the attention of HR in particular and they then reviewed the content of her Twitter account. They discovered dozens of tweets referencing drug use and other behaviors that are clear violations of your Code of Conduct.

To make matters worse, now other people are starting to reply to Helen’s tweets and including PU2, asking your company if they really hired someone who is just going to insult her employer before she even starts her job. HR would like to know what options they have regarding Helen.

Compose an email to your head of HR and CEO advising them on what they can do about Helen and if there is anything they should change in their hiring practices to mitigate this risk in the future.

The internet has a mild explosion every time Facebook announces a change to its terms of service. The shockwaves are just now creeping out with questionable articles and scary exposes bemoaning the upcoming changes and a slew of people posting those bogus copyright or privacy notices because they think those matter. Bogus notices which I blogged about two years ago–a fun little post called You Owe Me $2 For Reading This Blog Post Title (And The Three Signs Of A Social Hoax)–but are still going around.

But what there hasn’t been too much of is an actual comparison of the differences with the old Facebook terms and the new ones. Because that would be rational and probably not get many clicks. All the current articles seem to take for granted that the current/old Facebook terms are fine–but change is SCARY!

So here, in the closest way I can be not rational and get lots of clicks, even though it doesn’t matter since I don’t put ads on this site (wordpress may because I have the free service), is my fear-laden analysis of the actual section-by-section changes to the Facebook terms. If you want to check yourself here’s a link to the old (or current) terms and the new terms that go into effect in January 2015. Otherwise, just trust in me and BE AFRAID!!!

1. Privacy

Facebook doesn’t have a Privacy Policy–did you know that? No, that isn’t a change with the new terms–they haven’t had one in years. Instead they’ve had a Data Use Policy. Which is actually a better name for what the policy covers anyway. But now the policy will be called the Data Policy. The word “Use” has been obliterated, it’s a whole new world of darkness and evil!

Oh, that’s the only change to the Privacy section. Try to quell your horror and move on to section 2.

2. Sharing Your Content and Information

If that one change in the Privacy section didn’t terrify you then surely the two, yes TWO changes to the content sharing section will make you crawl under the bed and Instagram scary flashlight pictures all night.

Change 1: Data Use Policy is now Data Policy in the third item.

Change 2: the word “them” has been changed to “your feedback or suggestions” in the fifth item. Which is what “them” referred to anyway only now it’s clearer.

Steal your heart and move on to the next block.

3. Safety

The ninth item (“You will follow our Promotions Guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (‘promotion’) on Facebook.”) has been removed. It’s like they don’t even want us to be safe anymore! Or it’s like they moved it to another page and link it later. Either way: EVIL!

4. Registration and Account Security

Registering is when Facebook first sinks its evil tentacles into your personal information and account security is how you keep your own account out of the hands of other people. So it should surprise nobody that Facebook took this entire section and did nothing at all with it whatsoever. My goodness, does their evilness know no boundaries? They’re like a Sbarro restaurant to your lower intestine–pure, fast-moving evil!

5. Protecting Other People’s Rights

The old version mentioned how you couldn’t use Facebook trademarks except as provided in a Brand Use Guideline and it gave examples of what those trademarks were. Now it doesn’t give examples of Facebook marks. AT ALL. Except it makes Trademarks a defined term and gives the examples near the bottom of the document. THE BOTTOM. Dracula himself couldn’t be scarier if he was in High School Musical 6: No More Mirrors!

6. Mobile and Other Devices

We all know how important mobile devices are to Facebook users and the company. Knowing that, can you guess what they did with this section? NOTHING! It’s like the moment when the full moon comes out and the guy turns into a werewolf. Except there’s no moon and no werewolf. Run!

7. Payments

This section used to force you into the draconian and horrible Facebook payment terms–terms so horrific I dare only utter their name and make several hand-wards to keep the demons away. The new terms say that you will still be subjected to them–unless other terms are listed and then those apply. And those terms could be…better? No, they will be worse! They will demand your unborn baby and require you to listen to Justin Bieber music non-stop for months! How dare those…other payment providers besides Facebook make other terms available to you when buying things!

8. Special Provisions Applicable to Developers/Operators of Applications and Websites

This section links to special provisions that were totally in the same document before–you didn’t even have to click last time but NOW YOU DO! Oh, and they combined this with providers of social plug-ins as well, just to MAKE THINGS SIMPLER/EVILER FOR YOU!

9. About Advertisements and Other Commercial Content Served or Enhanced by Facebook

Oh yeah, here’s the beefy stuff. Because we all know that Facebook wants all your data to sell to people so that you’ll buy Snuggies and knock-off Legos and flavor injection kits that totally DO NOT INJECT FLAVOR NO MATTER HOW MUCH TERIYAKI SAUCE YOU USE! (ahem)

10. Special Provisions Applicable to Advertisers

Do you put ads on Facebook, you evil bastard? Then you should know these terms have moved to their own document! And that document is totally possessed by an evil doll who wants to steal half your socks. Not all your socks, just one of each pair. I hate those dolls.

Otherwise, no changes.

11. Special Provisions Applicable to Pages

No changes here…

12. Special Provisions Applicable to Software

No changes here…

13. Amendments

BAM! Oh, just when you were lulled into a false sense of security, Facebook done Amendment changed you, son! And do you know what they did? Do you know what they did? Why, they clarified when they may make changes to the terms but still said they’ll give you notice! That’s like McRib evil right there. They even took away the seven day requirement for posting changes to the terms meaning they could totally post term changes MORE THAN SEVEN DAYS AHEAD OF TIME! Not like they’ll ever do that though. I mean, it’s not like we’re analyzing term changes four weeks before they go into effect.

Wait, we are? THAT’S HORRIFYING! This is like the BuzzFeed list of 13 Kittens Who Are So Scaredy-Cat They Cannot Even Handle Right Now!

14. Termination

This is the section that says what part of the terms would still apply even if you don’t use Facebook anymore. And they made LESS terms still apply. If that isn’t the legal equivalent of the Alien chest burster, I don’t know what is…shudder.

15. Disputes

But what if you have a disagreement with Facebook? This is where they totally take advantage of you, right? You bet they do. And they do that by changing a typo (it said “or” when they meant to say “of”) and they also changed three instances where the limitation only said HIS or HIM and changed it to HIS OR HER or HIM OR HER. Wait, so these terms apply to women now too? What is this, Facebook, the women’s suffrage movement of the 1910’s? Because time travel is scary or something.

16. Special Provisions Applicable to Users Outside the United States

People outside the US don’t get to use Facebook anymore. Oh wait, that was an early draft. NO CHANGES?!?! Why, the implications of this are staggering. Has anyone told Kim Kardashian yet? She may need to delete her Facebook page in protest!

17. Definitions

There are so many changes here I can’t even begin to list them. Actually, there are four and they’re boring. Kinda like the Blob. Maybe a long time ago that was scary but now I’m just eating popcorn and waiting for The Fly to start.

18. Other

Obviously Facebook has saved the best for last. Other is the giant catch-all, the monster cornucopia of platform terms and conditions that lets the giant corporation eat your toes and drain your bank account. So it should come as no surprise that Facebook changed NOTHING here. Because that’s how evil they are: pure evil. Like pure maple syrup if maple syrup was evil. Which is crazy talk because maple syrup is pure goodness.

And…that’s it. My goodness, I’m surprised we made it through all of that. I believe the only rational response is to post a status update about the Burner convention and then delete our Facebook accounts. Instead let’s go over to WhatsApp. I hear the guys that run that app are super cool.

I hate tooting my own horn but this is one of the proudest moments in my still short social media law career. Please forgive the somewhat staged presentation but those who know me know that if I’m going to tell a story I need to make it interesting.

I was at the University of Texas Co-op’s law school location last week browsing the Nutshell books. (Go with me, people.) For those of you not in the legal profession, congrats on that by the way, know that the Nutshell series is put out by West Academic (one of the biggest names, if not the biggest name, in the legal publishing world) and is a fantastic resource for an overview of legal issues in a particular topic. They aren’t casebooks–larger books with often edited cases to look at judicial rulings on certain areas. Nutshells get right to the point and provide essential information on the overall legal topic. I used more than one when I was in law school and as a practicing attorney.

But I noticed something was missing from the Nutshell section. Can you spot it?

Can you spot what’s missing?

That’s right, there’s no Social Media Law in a Nutshell.

Let’s fix that, shall we?

I’m proud to announce that I will be writing Social Media Law in a Nutshell for West Academic. My co-author, Thaddeus Hoffmeister, is a professor of law at the University of Dayton School of Law and has previously published a book on social media in the courtroom. His knowledge of social media litigation, evidence uses, and applicability in criminal cases will combine with my information on the marketing, content, employment and other social media uses to make this a comprehensive review of social media across all legal channels.

Doing this as a Nutshell book feels perfect right now. There isn’t a wealth of case law on social media issues, but there are certainly cases out there. In some areas the most fascinating legal issues are taking place outside of a courtroom so a Nutshell allows us to cover those topics in ways a casebook couldn’t. Plus, when the movie rights get picked up we all agree that Hugh Jackman can play me. He’s just a more talented and better looking version of me who can also sing and dance and has a better accent. The resemblance is uncanny.

I’m not sure when the book will be released but it certainly won’t be until 2015 at the earliest. Rest assured I’ll let you all know as the process unfolds.

Yesterday I published the 100th blog post here on SoMeLaw Thoughts. When I look back at how much has changed in social media since I started writing about it, not just my own professional involvement, it’s staggering. I feel incredibly lucky to take this journey and contribute to the field as well as participate in a line of books that I personally value. To join the ranks of the Nutshell books blows my mind.

Thanks to all of my readers and friends on social media who have pushed/pulled/heckled me along the way. An even bigger thanks to my family for putting up with my little side projects.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.